Mealey's Elder Law

  • July 06, 2020

    Woman Dismisses Claims Over State’s Response To COVID-19 In Nursing Homes

    PHILADELPHIA — A lead plaintiff in a class action accusing the Pennsylvania Department of Health and its secretary of not taking proper precautions for nursing home staff and residents in response to the COVID-19 pandemic voluntarily dismissed her claims on June 30, just days after the department opposed a motion for a preliminary injunction on the ground that the plaintiffs’ proposed plan is an attempt to usurp its authority and alter its currently effective plan (Jodi Gill, et al. v. Pennsylvania Department of Health, et al., No. 20-cv-2038, E.D. Pa.).

  • July 02, 2020

    Nursing Home Removes COVID-19 Suit, Cites PREP Act, Federal Officer Statute

    LOS ANGELES — A Hollywood nursing home and its owner on July 1 removed a negligence and wrongful death complaint filed by the family of a resident who died of COVID-19 to federal court, arguing that the court has jurisdiction because they were acting under the direction of a federal officer and that the claims are preempted by the Public Readiness and Emergency Preparedness Act (PREP Act) (Emma Martin, et al. v. Serrano Post Acute LLC d/b/a Hollywood Premier Healthcare Center, et al., No. 20-cv-5937, C.D. Calif.).

  • July 02, 2020

    Indiana Panel Affirms Judgment Nixing Will For Undue Influence, Interference

    INDIANAPOLIS — In affirming a lower court’s judgment invalidating a will, the Indiana Court of Appeals on June 16 found no clear error in the lower court’s finding that a man who remarried a few months after his wife’s death and a few months before he died lacked mental capacity and was subject to undue influence when he left nearly all of his assets to his new wife (Mary Eve Kassen Moriarty v. Catherine C. Moriarty, et al., No. 19A-PL-2342, Ind. App.).

  • July 02, 2020

    Class Certification Denied In Nursing Home Negligence, Misrepresentation, Case

    LEXINGTON, Ky. — A federal judge in Kentucky on July 1 denied class certification in a former resident’s suit alleging, among other things, that a nursing home advertised false staffing information and inflated its ratings, finding that the proposed class is not ascertainable and that the plaintiff failed to meet the class requirements of Federal Rule of Civil Procedure 23 (Carrie Johnson, et al. v. BLC Lexington, SNF, LLC, et al., No. 19-064, E.D. Ky., 2020 U.S. Dist. LEXIS 114505).

  • July 01, 2020

    Conviction, Expert Ruling Upheld In Medicare Fraud Case Against Laser Eye Doctor

    ATLANTA — A trial court did not abuse its broad discretion in limiting the testimony of a medical expert for an ophthalmologist who was eventually convicted of health care fraud for conducting unnecessary and unhelpful procedures on hundreds of mostly elderly patients, the 11th Circuit U.S. Court of Appeals ruled June 29 in affirming the doctor’s conviction (United States v. David Ming Pon, No. 17-11455, 11th Cir., 2020 U.S. App. LEXIS 20103).

  • July 01, 2020

    Georgia Hospital Employees Allege COVID-19 Testing Manipulation, Seek TRO

    LAWRENCEVILLE, Ga. — An Athens, Ga., hospital is manipulating COVID-19 tests to obtain “false negative” results to keep space for new admissions and avoid negative publicity and oversight, four current and former employees allege in an amended petition for an emergency temporary restraining order (TRO) and interlocutory injunction filed June 22 in a Georgia state court (Jane Doe 1, et al. v. Landmark Hospital of Athens, LLC, No. 20-A-04131-3, Ga. Super., Gwinnett Co.).

  • June 30, 2020

    Indiana Panel Reverses Dismissal Of Paternity Cause In Grandparent Visitation Case

    INDIANAPOLIS — An Indiana appellate panel on June 26 reversed a trial court’s dismissal of a paternity cause, finding that the paternal grandparents’ request for visitation “is akin to a counterclaim or cross-claim” pursuant to Trial Rule 41(A) and, therefore, should not be dismissed against the defendant’s objection “‘unless the counterclaim or cross-claim can remain pending for independent adjudication by the court’” (Teresa Tapia Sevilla, et al. v. Maria Lopez, No. 19A-JP-2016, Ind. App., 2020 Ind. App. LEXIS 269).

  • June 30, 2020

    Texas Inmates Class Certified In COVID-19 Response Lawsuit

    HOUSTON — A federal judge in Texas on June 27 certified a class of inmates housed in a prison for primarily elderly inmates and those with health issues in a lawsuit accusing the Texas Department of Criminal Justice’s (TDCJ) of insufficiently responding to the novel coronavirus, which causes COVID-19 (Laddy Curtis Valentine, et al. v. Bryan Collier, et al., No. 20-1115, S.D. Texas, 2020 U.S. Dist. LEXIS 112807).

  • June 29, 2020

    Department Of Justice, Senior Housing Community Settle Disability Discrimination Suit

    ALLENTOWN, Pa. — The owners and operators of a senior housing community will pay a $55,000 civil penalty and establish a settlement fund of at least $250,000 to compensate residents and prospective residents who were harmed by tenant occupancy and eligibility policies and practices that discriminate against people with disabilities, according to a consent order signed June 25 by a federal judge in Pennsylvania (United States v. Heritage Senior Living, LLC, et al., No. 20-2272, E.D. Pa.).

  • June 29, 2020

    High Court Won’t Review Nursing Facility’s Appeal Of Arkansas Arbitration Ruling

    WASHINGTON, D.C. — The U.S. Supreme Court on June 29 denied review of a divided Arkansas Supreme Court ruling finding that only some arbitration agreements signed as part of a skilled nursing facility’s admissions process should be enforced (Robinson Nursing and Rehabilitation Center LLC, et al. v. Andrew Phillips, et al., No. 19-Ar1154, U.S. Sup.).

  • June 26, 2020

    Split W.Va. High Court Undoes Nursing Home Arbitration Unconscionability Ruling

    CHARLESTON, W.Va. — A West Virginia trial court erred in determining that a nursing home could not apply an arbitration agreement to wrongful death claims, a majority of the West Virginia Supreme Court of Appeals ruled in a June 16 memorandum that included a partial dissent holding that a “loser pays” provision in the agreement was unconscionable and a dissent that held that to apply the agreement would breach the state’s constitution (Stonerise Healthcare, LLC., et al. v. Susan K. Oates., No. 19-0215, W.Va. Sup., 2020 W.Va. LEXIS 388),

  • June 26, 2020

    Nursing Facility Cannot Arbitrate Wrongful Death Suit, New Mexico Panel Affirms

    ALBUQUERQUE, N.M. — The New Mexico Court of Appeals on June 11 affirmed a lower court ruling that a nursing facility cannot apply an arbitration agreement to a wrongful death suit filed by the family of a former resident because the facility rushed the signing of the contract and offered no meaningful choice as to whether to accept its terms (Lee Hunt, et al. v. The Rio at Rust Centre, LLC, et al., No. A-1-CA-37406 and A-1-CA-37902, N.M. App., 2020 N.M. App. LEXIS 29).

  • June 25, 2020

    Minnesota High Court: Non-Homestead Life Estates Count Toward Spouse Allowance

    ST. PAUL, Minn. — The term “individual” in a Minnesota statute outlining the qualifications for receiving medical assistance to cover long-term care under the state’s Medicaid program refers only to the medical assistance applicant and not to the community spouse, the state Supreme Court ruled June 24, reversing a ruling that the value of non-homestead life estates should not be included when calculating assets to determine the community spouse’s allowance (In re Esther Schmalz, No. A18-2156, Minn. Sup., 2020 Minn. LEXIS 332).

  • June 24, 2020

    Rehab Center Defendants In Coronavirus Class Action Invoke PREP Act, Oppose Remand

    NEWARK, N.J. — The operators of two New Jersey rehabilitation centers where at least 50 patients have died from COVID-19 maintain in a June 22 brief opposing remand that a class action negligence and wrongful death suit filed against them belongs in federal court because the claims fall under the Public Readiness and Emergency Preparedness (PREP) Act; alternatively, they argue that the national emergency declaration and regulations issued by national health agencies in response to the pandemic converted health care workers and facilities into “agents and officers acting to further a government interest thus conferring Federal Officer jurisdiction” (Estate of Joseph Maglioli, et al. v. Andover Subacute Rehabilitation Center I, et al., No. 20-cv-6605).

  • June 24, 2020

    Pennsylvania Dental Practice Will Pay $100,000 To Settle EEOC Age Bias Lawsuit

    HARRISBURG, Pa. — A federal judge in Pennsylvania on June 22 approved a settlement under which a Pennsylvania dental practice will pay $100,000 and provide equitable relief to end claims by the Equal Employment Opportunity Commission that it fired nearly all of its dental hygienists who were older than 40 and replaced them mostly with younger workers (Equal Employment Opportunity Commission v. Michael A. Sisk, DDS, LLC, No. 19-804, M.D. Pa.).

  • June 23, 2020

    Railroad Retirement Board: Reopening Denial Decisions Not Subject To Judicial Review

    WASHINGTON, D.C. — U.S. Railroad Retirement Board decisions denying motions to reopen prior benefits determinations are not subject to judicial review because “the plain text” of the Railroad Unemployment Insurance Act (RUIA) “forecloses” such review, the board tells the U.S. Supreme Court in its June 8 response brief (Manfredo M. Salinas v. U.S. Railroad Retirement Board, No. 19-199, U.S. Sup.).

  • June 22, 2020

    9th Circuit:  California IMDb Age Discrimination Law Violates 1st Amendment

    SAN FRANCISCO — Upholding a grant of summary judgment to the operator of “the Internet Movie Database,” a Ninth Circuit U.S. Court of Appeals panel on June 19 found that a California statute, which required the website operator to remove subjects’ age information upon request, to be a content-based restriction on speech that violated the First Amendment to the U.S. Constitution (IMDb.com Inc. v. Xavier Becerra, et al., Nos. 18-15463 and 18-15469, 9th Cir.).

  • June 19, 2020

    D.C. Circuit: HHS Drug Price Disclosure Rule Runs Afoul Of APA

    WASHINGTON, D.C. — The District of Columbia U.S. Circuit Court of Appeals on June 16 concluded that “there is no reasoned statutory basis” for a May 2019 rule by the U.S. Department of Health and Human Services (HHS) requiring drug manufacturers to disclose in television advertisements the wholesale acquisition cost of drugs and biologics for which payment is available under Medicare or Medicaid (Merck & Co Inc., et al. v. U.S. Department of Health and Human Services, No. 19-5222, D.C. Cir., 2020 U.S. App. LEXIS 18857).

  • June 19, 2020

    Partial Summary Judgment, Injunction Denied In Nursing Home Residents’ Dumping Suit

    OAKLAND, Calif. — A federal judge in California on June 15 denied partial summary judgment to three nursing home residents who claim that the secretary of the state Department of Health and Human Services (HHS) is violating their civil rights by failing to enforce orders allowing patients to be readmitted to skilled assisted living facilities, noting that the motion for preliminary judgment was filed before the completion of discovery and that genuine issues of material fact exist regarding whether the individual plaintiffs have been denied their right to appeal (Bruce Anderson, et al. v. Mark Ghaly, No. 15-CV-05120, N.D. Calif., 2020 U.S. Dist. LEXIS 104232).

  • June 16, 2020

    Dispute Over Arbitrability, Injunction Carveout Heading Back To High Court

    WASHINGTON, D.C. — In its June 15 order list the U.S. Supreme Court announced that it will hear, for a second time, a dispute between two distributors of dental equipment that poses the question of whether an exemption in an arbitration agreement for certain claims negates what a petitioner describes as “an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator” (Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963, U.S. Sup.).